Right On Crime is distributing a short policy brief in Louisiana to encourage legislators and Governor Jindal to pass significant criminal justice reform during the state’s current legislative session. The brief discusses some of the policy problems confronting Louisiana and recommends the Right On Crime principles as the key to reform. You can read the policy brief here.
New Report on Prosecutorial Regulation of Corporations
May 16, 2012 By
Low level criminal cases against individual defendants can sometimes be dismissed in lieu of a fine, or due to community service performed prior to the trial date, usually as recognition that the individual defendant’s debt to society has been paid and a trial is unnecessary. This standard practice is substantially expanded when federal prosecutors file charges against corporations involved in finance, health care, and other multi-billion dollar industries and enter into an agreement before trial, as detailed in a new report from the Manhattan Institute.
These agreements, named deferred prosecution or non-prosecution agreements, are entered into following the filing of criminal charges, and used by the corporations to avoid trial and the attendant collateral effects that can severely hamper business. They are also used by prosecutors to exact penalties without the cost and risk of proving their case before judge or jury.
After the U.S. Department of Justice files charges against a corporation, frequently for a violation of the Foreign Corrupt Practices Act, fraud, or antitrust law, the two sides to the criminal case come together under an agreement that usually involves two key aspects: a substantial fine and sometimes continuing prosecutorial oversight of the corporation.
The fines can be crippling: over $5 billion in 2009, $4 billion the year after that. But a far more onerous component of deferred or non-prosecution agreements is the prosecutorial regulation of the corporations involved, both at the time of the criminal case and often for some time into the future. The oversight can broadly encompass sales and compensation practices, merger and acquisition decisions, implementation of corporate monitors who report to prosecutors, and even ouster of corporate executives.
There have been over 200 such agreements in the last decade, and even include seven of Fortune magazine’s top 100 largest U.S. businesses.
As the Manhattan Institute points out, the problem with these agreements is not necessarily the underlying regulation—regulation of corporations is an important function of criminal laws when truly fraudulent behavior has taken place—but that these agreements evade judicial oversight and have significant economic impacts on the corporation. Further, companies fearful of negative publicity with a criminal trial, stunting of business growth, or ineligibility for federal contracts may forgo the risk of trial and enter into these agreements even if guilt is disputed.
These agreements could be a more efficient component of the criminal justice and regulatory system with a modicum of judicial oversight, and with a less broad scope, both in terms of the conduct for which such agreements may be used and in the long-term prosecutorial control over a private company.
The report, “The Shadow Regulatory State: The Rise of Deferred Prosecution Agreements,” by James R. Copland, is available here.
FOCUS Act Debated in House Committee
May 11, 2012 By
This week, H.R. 4171, the Freedom from Over-Criminalization and Unjust Seizures Act of 2012, or the FOCUS Act, was heard in committee. This legislation is designed to restore the Lacey Act to its original purpose.
The Lacey Act has been in the news lately because it is the legal underpinning for a raid of Gibson Guitar by the federal Fish and Wildlife Service. The Act, as codified today, permits criminal charges to be brought in United States courts against anyone accused of violating foreign laws. This brought about a raid and seizure of property from Gibson upon allegations that it imported rosewood from India in supposed violation of Indian law (although Indian officials have questioned the U.S. government’s legal analysis that harvesting the wood is illegal).
Originally, the Lacey Act was intended to have a much more focused purpose—namely, prohibiting the trafficking of illegal game. To that end, the FOCUS Act strips the legislation of its criminal sanctions and the references to foreign laws that have nothing to do with illegal game.
Reports out of the committee hearing show that the testimony was passionate on both sides of the debate, but that Senator Rand Paul (R-KY) and Representative Paul Broun (R-GA) succinctly summed up the issue: as it stands, the Lacey Act requires every American to know both the criminal and civil laws of every foreign country.
If such a requirement doesn’t need FOCUS, we’re not quite sure what would.
Sobering Centers: Cutting Jail Populations, Costs, and Crime
May 11, 2012 By
Almost 19,000 arrests in Houston each year are for public intoxication alone. While certainly this offense is an important tool to keep streets clean and crime free, public intoxication is almost always a non-violent offense handled most appropriately with detoxification rather than secure confinement. Not only does jail time fail to address the underlying issues, it is also expensive–in Houston, the 19,000 public intoxication arrests require $4-$6 million each year in law enforcement and jail costs.
In search of more effective case management of public intoxication offenders, San Antonio, San Diego, Phoenix, Colorado Springs, and Portland have all adopted the use of a “sobering center” as a diversion alternative for these offenders.
A sobering center accepts public intoxication offenders—and only such offenders–from law enforcement custody rather than being sent to a jail cell. Then, after obtaining health information, the offender is required to sober up. When sober, the center counsels the offender on alcohol issues and social services available to help break the cycle of alcoholism. Unless there are active city warrants out on the offender, he or she is then discharged.
This approach is more effective because it addresses the underlying issue of alcohol abuse inherent in most public intoxication offenses. It diverts these non-violent offenders away from costly jail beds while ensuring they are not out on city streets putting themselves or others in harm. Police officers, meanwhile, are free to turn their attention to far more dangerous crimes and criminals.
In turn, Houston is now considering a sobering center of its own. The estimated cost of annual operation is about $1.5 million, far less than the $4-6 million currently spent jailing public intoxication offenders. Further, the size of the facility has been calibrated to optimally handle almost all public intoxication offenders.
Other cities adopting such sobering centers have seen reductions in arrests and jail time for these offenders, as well as fewer emergency room and hospital check-ins for this often indigent population, on top of the cost savings found in jail bed diversions. In San Antonio, in the first year alone, the sobering center led to $6 million in cost savings. After three years, total cost savings from reduced jail time, reduced hospitalizations, and other sources stretches over $25 million.
The successes and cost savings realized by other municipalities are currently being considered by Houston as it seeks its own sobering center. The city may also decide that there is a better way of handling public intoxication that can keep Houston streets safe while saving taxpayers millions.
An Interview with U.S. Congressman Ted Poe
April 27, 2012 By
To close National Victims’ Rights Week, I interviewed United States Congressman Ted Poe about his work chairing the Congressional Victims’ Rights Caucus. Poe observed that victims’ restitution can come in several different forms. Money is obviously one of those forms, but it’s not the only one. Click here to listen to the podcast.
An Important Victims’ Restitution Case in the Fifth Circuit
April 24, 2012 By
A woman identified by the pseudonym “Amy” was the victim of child sexual abuse. The abuse was photographed, and the pornographic images are widely circulated on the internet. An East Texas man named Doyle Paroline is one of the individuals who has viewed the images. Authorities found two images of Amy among 280 images of child pornography on Paroline’s computer. He pleaded guilty to possession of child pornography in 2009, and he was sentenced to federal prison.
At Paroline’s sentencing, Amy sought over $3.3 million in restitution from Paroline, pursuant to the Crime Victims’ Rights Act. 18 U.S.C. § 3771(a)(6). She arrived at the $3.3 million figure by combining her lost income, attorney’s fees, and the cost of her psychological counseling. The trial court, however, denied her restitution request, holding that in order to recover the restitution, Amy was required to demonstrate that Paroline – rather than the thousands of other individuals who have viewed the images – “proximately caused” her injury.
In March of 2011, the Fifth Circuit Court of Appeals overruled the trial court in a case styled In re Amy Unknown. The appellate court, in an opinion by Judge Edith Jones, held that there is no proximate cause requirement in the Crime Victims’ Rights Act, and thus the district court had erred in insisting that proximate cause be demonstrated.
This, however, was not the end of the story because in early 2011, the Eleventh Circuit Court of Appeals reached precisely the opposite conclusion. In U.S. v. McDaniel, Judge Charles Wilson’s opinion concluded that the Crime Victims’ Rights Act did include a “proximate cause” requirement. Shortly, thereafter, the D.C. Circuit Court of Appeals agreed with the Eleventh Circuit in U.S. v. Monzel.
Next Thursday, the Fifth Circuit will rehear In re Amy, along with their decision in U.S. v. Wright, yet another case involving a restitution claim by Amy. In Wright, Judge W. Eugene Davis directly urged the appeals court to grant a rehearing en banc to consider the vexing “proximate cause” question.
It is an important question and one with obviously significant consequences for victims’ restitution. If the Fifth Circuit once again interprets the statute as lacking a proximate cause requirement, then the circuit split will remain, and it is likely that the U.S. Supreme Court will feel the need to decide the matter.
For more on this case, see Professor Doug Berman’s comments or these comments from former federal Judge Paul Cassell, who represents Amy before the Fifth Circuit.
National Crime Victims Rights Week 2012
April 23, 2012 By
In 1981, Ronald Reagan signed an executive order establishing National Crime Victims Rights Week (NCVRW). This week marks the 32nd annual celebration of the week, which promotes victims’ interests and recognizes those who work on behalf of victims. NCVRW is managed by the federal Office for Victims of Crime, but people throughout the U.S. – for example in Oklahoma, Wisconsin, New Mexico, Arizona, Florida, and New York – are holding their own commemorations. Even Canada has begun to recognize the week.
Right On Crime will have coverage of NCVRW throughout the week, focusing on several core principles, among them:
- Victims must be given the choice to participate, receive restitution, and even be reconciled with first time, non-violent offenders;
- In appropriate cases, enable crime victims to choose pretrial victim-offender conferencing;
- Victims must be notified about developments in the case against the offender; and
- The amount and share of the restitution a victim collects should be used as a performance measure for probation and parole systems.
For a better sense of how sensible criminal justice reform would approach the interests of crime victims, read Right On Crime’s page on victims’ issues or read this Daily Beast piece which RoC signatory Pat Nolan penned about NCVRW just one year ago.
School Discipline: When Should Law Enforcement Step In?
April 19, 2012 By
This week, several schools and districts are grappling with the issue of when—if ever—it is appropriate for police officers to get involved with school discipline issues.
The Albuquerque school district, for example, is currently the defendant in a class action lawsuit over referring students to law enforcement for allegedly minor offenses. When a student was talking to her friend and refused to return to her seat, her teacher called the police.
In contrast, a Georgia six-year-old throwing a violent tantrum—which included destruction of property and assault, according to published reports—was arrested and taken away in a police cruiser. She was also put in handcuffs while in the cruiser, according to standard department policy, but to the outrage of many.
The Georgia example highlights that law enforcement may sometimes be required, but it is nevertheless essential that schools are not unduly relying on law enforcement and other serious disciplinary measures. A recent report out of California estimated that 40 percent of suspensions are for “willful defiance” or disrupting class.
This is a significant issue because suspensions translate to time out of school and lost education hours. Arrests for minor offenses often result in increased risks of further justice system involvement. While discipline is an important component of administering effective education, it is essential that it “fits the crime,” so to speak. Teachers and school district officials must create careful discipline policies that do not overly rely on the justice system or out-of-school suspensions for minor misbehavior that is more appropriately corrected with traditional school discipline methods.
Juvenile Mental Health Court in D.C. Shows Early Success
April 11, 2012 By
In Washington D.C., juveniles charged with certain offenses (including some misdemeanors and non-violent, low-level felonies) and diagnosed with a mental illness, can apply to be diverted to a specialized mental health court.
There, under the guidance of Judge Joan Goldfrank, youths are held accountable for their specific problem behavior—such as school attendance, substance abuse, or avoiding mental health treatment.
Early results are encouraging: out of the 56 enrolled in 2011, only eight were subsequently re-arrested. This rate, 14 percent, is far lower than the average re-arrest rates out of D.C.’s general juvenile courts, which hovers around forty percent.
While the Washington Post story highlights some of the problems a mental health court faces—namely, acceptance of a mental health diagnosis by a juvenile and his or her family—the early indicators of success (as measured through reduced recidivism and reduced costs), should make Washington, D.C. residents optimistic.
Jobs for Inmates In and Out of Prison
April 5, 2012 By
For a prisoner exiting the corrections system, the ability to secure steady employment may determine whether he or she is able to successfully reenter society and begin a productive, law-abiding life.
In Texas and New York, two vocational programs—one for those behind bars and one for those freshly out—aim to increase the odds that an ex-inmate will be gainfully employed.
The Texas Correctional Industries system includes factories in 37 prisons for over 5,000 inmates, and it produces license plates, inmate clothing, tires, signs, furniture, shoes, and repaired computer equipment. TCI boasts a recidivism rate for its longest tenured employees that is half that of the general population. It aims not only to keep prisoners busy while behind bars, but also to provide technical skills useful for the job hunt on the outside.
In New York, the Transitional Jobs program out of the Center for Employment Opportunities puts ex-offenders to work, first by learning soft work skills, then through low-skill employment. An independent evaluation of the Transitional Jobs program found that it reduced recidivism by 16 to 22 percent.